UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. AARON RICHARD EUBANKS, Defendant - Appellant. No. 24-7005 (D.C. No. 6:21-CR -00222-CBG-1) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , McHUGH , and FEDERICO , Circuit Judges.

________________ _________________ Aaron Richard Eubanks app eals his conviction for aggravated sexual abuse. He challenges the district court’s ruling re jecting his objection to a jury instruction about the propriety of attorneys intervie wing witnesses prior to trial. Exercising jurisdiction under 28 U.S. C. § 1291, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value cons istent with Federal Rule of Appellate Procedure 32. 1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 20, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 24-7005 Document: 010111097232 Date Filed: 08/20/2024 Page: 12 I. BACKGROUND Following a four-day trial, a jury convicted Mr. Euba nks of five counts of Aggravated Sexual Abuse in Indian Country , in violation of 18 U.S.C. §§ 2241(c), 2246(2), 1151, and 1153. Mr. Eubanks wa s found to have sexually abused his biological twin daughters on several occasions. Prior to closing arguments, the Government proposed the inclusion of a jury instruction explaining that “[i] t is proper for an attorney to interview any witness in preparation for trial” (the “attorney-intervi ew jury instruction”). ROA Vol. I at 40. Defense counsel objected to th e inclusion of this instruc tion, asserting that because most trial witnesses were G overnment witnesses, this instruction would “put the [c]ourt’s thumb on the scale in favor of the United States.” ROA Vol. III at 7. The Government responded that it proposed this instruction b ecause defense crossexamination of the victims suggested th at the victims had been coached. The Government explained, “in or der to rebut th[is] suggesti on, it would be helpful for each side to have the court instruct the jury that meeting w ith witnesses is not necessarily improper.” Id. at 8. Defense counsel conceded , “it is a true statement that every lawyer has a right to meet with w itnesses,” but then asserted the claim of witness coaching was part of his defense, im plying that this instruction would defeat this argument. Id. at 10. The court acknowledged Mr. Eubanks’s “r ight to make [the] argument[] that there has been some suggestion to [the victim s] that affected what they have to say and, therefore, affe cted their testimony.” Id. But the court then stated that the Appellate Case: 24-7005 Document: 010111097232 Date Filed: 08/20/2024 Page: 23 proposed instruction appeared to be a “fairly innocuous [i nstruction] just saying that it is proper for an attorney to intervie w any witness in preparation for trial.” Id. Defense counsel responded that he agreed with this stat ement, but he was concerned the instruction could nonetheless unfairly “t elegraph to the jury” that the Government had properly interviewed witnesses. Id. at 11. The court aske d the Government to explain again why it believed the instruc tion was necessary, and the Government responded that the purpose of the instruc tion was to clarify that counsel may interview witnesses. The Go vernment noted, however, th at Mr. Eubanks could still argue that the Government coached its witne sses irrespective of th e inclusion of this instruction. The court allowed the attorney-interview jury instruction and overruled the objection, explaining: I think this instruction, in and of it self, is a simple a nd correct statement of something that is true, that it is proper for an attorn ey to interview a witness in preparation for trial. A nd it does not foreclose the defendant from arguing that there was some sugge stion that occurred, directly or indirectly, that affected the witness’s testimony along the way, and that that would be improper, of course. ROA Vol. III at 12. Mr. Eubanks appeals the district court’ s decision to overrule his objection to the attorney-interview jury instruction.
II. DISCUSSION Mr. Eubanks contends the district cour t abused its discretion in overruling his objection to the Government’s attorney-int erview jury instruction, arguing the Appellate Case: 24-7005 Document: 010111097232 Date Filed: 08/20/2024 Page: 34 instruction undermined his impeachment of the victims based on the claim they were coached, denied him his sole defense that the abuse neve r happened, and misled the jury on how to use the impeach ment evidence. We conclude the district court did not abuse its discretion in overruling his objection. “This court reviews the jury instructions de novo in the context of the entire trial to determine if they accurately state the governing la w and provide the jury with an accurate understanding of the relevant le gal standards and factual issues in the
case.” United States v. Jean-Pierre , 1 F.4th 836, 846 (10th Cir. 2021) (internal quotation marks and alterations omitted). “In doing so, we consider whether the district court abused its di scretion in shaping or phrasi ng . . . a particular jury instruction and deciding to give or refuse a particular instruction.” United States v. Christy , 916 F.3d 814, 854 (10th Cir. 2019) (quot ation marks omitted). “An abuse of discretion occurs when a judicial determ ination is arbitrar y, capricious[,] or whimsical.” United States v. Shumway , 112 F.3d 1413, 1419 (10th Cir. 1997) (quotation marks omitted). “We will not overturn a discretionary judgment by the trial court where it falls within the bounds of pe rmissible choice in the circumstances.” Id. (internal quotation marks omitted). “[A] trial j udge is given substantial latitude and discretion in tailoring and formulating the instructions so long as they are correct statements of law and fairly and adequately cover the issues presented.” United States v. Wood , 207 F.3d 1222, 1235 (10th Cir. 2000) (quotation mark omitted). “As a general rule, instructi ons on how to assess evidence are particularly matters of trial-court discretion, because they are di rected to guiding the jurors’ common sense Appellate Case: 24-7005 Document: 010111097232 Date Filed: 08/20/2024 Page: 45 in the context of the case rather than informing th em of the governing law.” United States v. John , 849 F.3d 912, 918 (10th Cir. 2017). We affirmed the denial of a similar objection to a nearly identical jury instruction in United States v. John , 849 F.3d at 919–20. There, the defendantappellant claimed the district court abused its discretion by overruling an objection to the following jury instruction: “[a]n attorney has the right to interview a witness for the purpose of learning what testimony the w itness will give. The f act that a witness has talked to an attorney does not reflect adversely on th e truth of such testimony.” Id. at 919. We explained that th is jury instruction presente d an accurate statement of law and educated jurors on a point that may have been otherwise unfamiliar. Id. at 920. We also noted that, contrary to the defendant’s argument, this jury instruction did not imply that “nothing improper coul d possibly occur in such discussions.” Id. Additionally, we explained in John that the challenged instruction “[did] not prevent defense counsel from making a co mmonsense suggestion that the witness was influenced by inappropriate coaching.” Id. And here, like in John , Mr. Eubanks conceded that he could and did argue that the victims were coached both in crossexamination and closing statements. See id. Although the challenged attorney-interview jury instruction here and the jury instruction in John are not identical, the differences weigh in favor of affirming the district court’s ruling. The instruction in John included a second se ntence that spoke directly to the truthfulness of a previously interviewed w itness’s testimony: “The fact that a witness has talked to an attorney does not reflect adversely on the truth of such Appellate Case: 24-7005 Document: 010111097232 Date Filed: 08/20/2024 Page: 56 testimony.” Id. at 919. Here, the instru ction was more limited, stating only that, “[i]t is proper for an attorney to interview a ny witness in preparation for trial.” ROA Vol. I at 40. Where this court has previously held that the distri ct court did not abuse its discretion in approving a more robust instruction in John, we easily conclude the district court here did not abuse its discretion in overru ling Mr. Eubanks’s objection. The challenged attorney-interview jury inst ruction did not misstate the law, did not misrepresent the factua l issues in the case, educated jurors on a point that may have been otherwise unfamiliar, and did not prevent the defense from suggesting the Government coached the witnesses during th e interviews. Accordingly, the district court’s approval of the jury instruction fell within the bounds of permissible choice. See John , 849 F.3d at 920; Jean-Pierre , 1 F.4th at 846; Shumway , 112 F.3d at 1419. Notwithstanding our decision in John, Mr. Eubanks points us to a District of New Mexico ruling in which the district court sustained a defense objection to the following proposed jury instruction: “[a] n attorney has the ri ght to interview a witness for the purpose of learning what testimony the witness will give. The fact that the witness has talked to an attorney does not reflect adversely on the truth of such testimony.” United States v. Harry , No. CR 10-1915 JB, 2014 WL 6065677, at *21 (D.N.M. Oct. 14, 20 14). We are unpersuaded by Harry for two reasons. First, the District of New Mexico issued Harry more than two years before this court approved the same jury instruction in John . And unlike Harry, John is controlling precedent on this court. Second, the issue in Harry is not the same as the issue presented here. A district c ourt has wide discretion in approving or rejecting jury Appellate Case: 24-7005 Document: 010111097232 Date Filed: 08/20/2024 Page: 67 instructions. Wood , 207 F.3d at 1235. Thus, wh ile the district court in John did not abuse its discretion in approving such an instruction, there is nothing in John that suggests such an instruction must be given in every case. It is th us possible that the district courts in Harry and in John both acted properly within their broad discretion. The district court here also acted properl y within its broad discretion in permitting the attorney-interview jury instruction. Mr. Eubanks also cites an unpub lished Ninth Circuit decision, United States v. William , 491 F. App’x 821 (9th Cir. 2012), cl aiming that it shows how a jury instruction that undermines the basis for a defense is misleading and harms the validity of the underlying verdict. But in William , the court reversed and remanded a conviction based on an erroneous jury inst ruction which the court held could be understood by the jury “as re lieving the government of it s burden to prove intent” in a trial for mail theft and possession of stolen mail. 1 Id. at 822. Here, even Mr. Eubanks concedes the jury instruction is an accurate statement of the law. Having considered “the context of the enti re trial,” we conclude the challenged jury instruction “accurately state[d] the governing law a nd provide[d] the jury with an accurate understanding of the relevant le gal standards and factual issues in the
case.” Jean-Pierre , 1 F.4th at 846 (quotation marks omitted). The district court did

1 The challenged instruction directed that the jury may infer that the defendant stole a letter “if it was ‘pr operly addressed and recently mailed,’ ‘never received by the addressee,’ and ‘found in [his] possession.’” United States v. William , 491 F. App’x 821, 822 (9th Cir. 2012) (alteration in original). Appellate Case: 24-7005 Document: 010111097232 Date Filed: 08/20/2024 Page: 78 not abuse its discretion in overruling Mr . Eubanks’s objection to this proposed instruction.
III. CONCLUSION We AFFIRM Mr. Eubanks’s conviction.

Entered for the Court
Carolyn B. McHugh Circuit Judge Appellate Case: 24-7005 Document: 010111097232 Date Filed: 08/20/2024 Page: 8